Right of Publicity

Very similar to the tort of appropriation, the right of
publicity is a relatively new intellectual property right that has developed over the past
fifty years.under state common law. The right of publicity grants property rights to
everyone, allowing each person to control the commercial use of his or her identity. But
has been particularly valuable to celebrities in exploiting the economic value in their
identities.

The Right of Publicity prevents the unauthorized
commercial use of an individual's name, likeness, or other recognizable aspects of one's
persona. The "right of publicity" has grown to include the potential
misappropriation of voice, performance style, former names, and maybe, even the image of
an animal. Right of Publicity gives an individual the exclusive right to license the use
of their identity for commercial promotion.

The first case to recognize the "right of
publicity" was Haelan Laboratories Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868
(2d Cir.), cert. denied, 346 U.S. 816 (1953). The Court in Haelan recognized the value of
and property right in a baseball player's photograph used on trading cards.

Only a few states have distinctly recognized a Right of
Publicity. The right of publicity varies from state to state but either common law or
statutory law protects certain individuals from the unauthorized exploitation of their
identity. In California, for example, the right of publicity is protected both by statute
and common law.

Where recognised, right of publicity is a descendible and
assignable property right. California provides that the right of publicity is descendible
for a period of 50 years after death. Tennessee provides protection for as long as the
right holder continually exploits the commercial value of the identity.

Many states do not recognize the right as the Right of
Publicity, but protect it as part of the Right of Privacy. The unauthorized appropriation
of an individual's identity is considered an invasion of the right of privacy.

The Restatement Second of Torts recognizes four types of
invasions of privacy: intrusion, appropriation of name or likeness,unreasonable publicity
and false light.

Right of Publicity can also be protected through the law of unfair competition.

One can protect the right of publicity by bringing an action for the tort of
misappropriation or for a wrongful attempt to "pass off" a product as endorsed
by an individual or produced by an individual.

The extended form of passing off is used by celebrities
as a means of enforcing their personality rights in common law jurisdictions. Common law
jurisdictions (with the exception of Jamaica) do not recognise personality rights as
rights of property. Accordingly, celebrities whose images or names have been used can
successfully sue if there is a representation that a product or service is being endorsed
or sponsored by the celebrity or that the use of the likeness of the celebrity was
authorised when this is not true.